PRINCIPLE DISCUSSION Respect for difference
C. Why is the Convention important?
The Convention:
✓ Clarifies the rights of persons with dis-abilities. As noted already, many per-sons with disabilities are unaware of their rights and these rights are often neglected. The Convention recognizes that persons with disabilities have the same rights as everyone else and that they should enjoy them on an equal basis with people without disabilities.
✓ Sets out responsibilities to respect those rights. It recognizes that asserting rights is not enough on its own and that it is equally important to identify the various steps that States (and others) should take to respect those rights. In this sense, the Convention is very comprehensive as it
sets out in some detail the responsibili-ties to respect, protect and fulfil the rights of persons with disabilities.
✓ Recognizes disability as a social con-struct and society should dismantle the barriers preventing persons with disabil-ities from participating fully in society.
✓ Promotes inclusive and accessible devel-opment. It is often described as a human rights treaty and a development tool.
This continues a trend in human rights law that recognizes the need for States to take positive steps to guarantee rights and highlights the role of the international community in helping States to achieve those rights. Indeed, development is essential if the Convention is to be imple-mented properly. For example, many pro-visions require improvements in access to goods and services which rely, in part, on having effective development strategies and policies. Importantly, development should be inclusive of and accessible to persons with disabilities (art. 32). This requires a twin-track approach: specific programmes for persons with disabilities coupled with mainstreaming their rights into development projects, programmes and other interventions.
✓ Ensures national and international mon-itoring of rights. While this is not the same as ensuring legal enforceability, the fact that the Convention establishes national and international mechanisms to support implementation and monitor-ing is a way to support rights as well as the implementation of the Convention.
D. “Disability” and “persons with disabilities”
The Convention does not provide a closed definition of disability. Its preamble
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states that disability is an evolving concept.
Nevertheless, the Convention does reflect a social model of disability as it clarifies that disability results from the interaction between persons with impairments and external barriers that hinders their partici-pation in society.
In this perspective, the framework reflected in the Convention is built on the understanding that it is the external environ-ment, and the attitudes that are reflected in its construction, that plays a central role in creating the condition termed “disability”.
This contrasts sharply with the medical model of disability, which is instead built on the concept of the “broken body”, with disability being the obvious result of a physical, mental or sensory deficiency of the person.
Because of this approach, the notion of “disability” cannot be rigid but rather depends on the prevailing environment and varies from one society to the next. While the Convention recognizes disability as an evolving concept, it clearly endorses the understanding of it as a social construct, when it states that disability “results from the interaction between persons with impair-ments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”.
In line with this understanding, the Con-vention does not provide a closed definition of who persons with disabilities are, but states that they “include” those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others (art. 1, purpose).
Some important elements to consider are: 6
(a) Evolving v. fixed concept. The Convention recognizes that “disability” is an evolving concept resulting from attitudinal and environmental barriers. Consequently, the notion of “disability” is not rigid and can be adapted to the prevailing environ-ment in a particular society (the focus will be on the type of attitudinal and environ-mental barriers present in those societies and ways to overcome them).
(b) Disability not as a medical problem but as an interaction between an impair-ment and the surrounding environimpair-ment.
The focus of the Convention is not on disability as a medical problem; for the Convention, persons become disabled when they clash with an unwelcoming or inaccessible environment. Persons with disabilities do not require to be “fixed”
before accessing an environment (soci-ety); it is instead the environment that needs to be uniformly open to all its members. It does so by dismantling atti-tudinal and environmental barriers so that everyone can actively participate and enjoy the full range of rights.
(c) The Convention includes all disabilities.
The Convention does not restrict coverage to particular persons; rather, it identifies persons with long-term physical, mental, intellectual and sensory disabilities as its beneficiaries. The reference to “include”
in article 1 could therefore extend the application of the Convention to all per-sons with disabilities, e.g., those with short-term disabilities or persons who are perceived to be part of such groups.
6 See also module 1 above.
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(d) Categorizing barriers rather than human beings. Categorizing a person can be the first step towards excluding that per-son and violating his or her inherent dig-nity. The Convention does not preclude the use of definitions in national legisla-tion; definitions might be particularly nec-essary in some sectors, such as employ-ment or social security. What is important is that definitions informing policies and laws reflect the social model of disability where the challenge facing a person with a disability is measured in terms of the existing barriers and not on the category or percentage of the impairment.
The explicit reference to barriers, exter-nal to the subject, as constituting factors of disability represents an important step away from notions that equated disability with func-tional limitations.
For example, the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities define disability as the “different functional limitations occurring in any population in any country of the world. People may be disabled by physical, intellectual or sen-sory impairment, medical conditions or mental illness”. The Convention upgrades this approach.
The Convention does not deny the exis-tence of physical, mental, intellectual or sen-sory impairments (art. 1); what it rejects is an approach which limits or deprives persons with disabilities from fully participating in society because of such impairments.
The impairment (limit or restriction) has instead to be found in the various barriers, which might include physical barriers, but
also attitudes leading to discriminatory legis-lation and policies. Ignorance about disabil-ity can be deleterious and that is why wide awareness-raising is one of the main goals of the Convention.
The Convention identifies two categories of persons with disabilities who might be par-ticularly vulnerable to discrimination and abuse of rights: women with disabilities and children with disabilities (arts. 6 and 7).
Women with disabilities
The Convention recognizes that women with disabilities often face multiple forms of discrimination on the basis not only of disabil-ity but also of sex (art. 6). Consequently, spe-cific attention might be needed to develop pro-grammes taking into account gender aspects as well as the rights of persons with disabili-ties, e.g., to boost the percentage of girls or women with disabilities enrolled in the school system in view of their right to education.
One area where women and girls are vul-nerable is gender-based violence. The United Nations Population Fund (UNFPA) estimates that persons with disabilities are up to three times more susceptible to physical and sexual abuse and rape. Women and children with disabilities are more likely to be victims of vio-lence than their male counterparts. 7
The Convention on the Elimination of All Forms of Discrimination against Women is the specialized human rights treaty on women’s rights. It can be read together with the Con-vention on the Rights of Persons with
Disabil-7 For more information, see Department of Economic and Social Affairs, UNFPA, Wellesley Centers for Women, Disability Rights, Gender and Development: A Resource Tool for Action. Available from www.un.org/disabilities/
documents/Publication/UNWCW%20MANUAL.pdf (accessed 8 October 2012).
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ities to understand more fully the responsibil-ities of States to prevent discrimination and promote equality for women with disabilities.
Children with disabilities
Disability itself cuts across all aspects of a child’s life and can have very different implications at different stages in life. It is very important to ensure that the rights of children with disabilities are taken into account in laws, policies, programmes and other interventions in a way that no child is left out.
Article 7 of the Convention on the Rights of Persons with Disabilities requires State parties to take all necessary mea-sures to ensure the full enjoyment by chil-dren with disabilities of all human rights and fundamental freedoms on an equal basis with other children. It borrows the term “the best interests of the child” from the Convention on the Rights of the Child and requires that this be a primary consid-eration in all actions concerning children with disabilities.
The Committee on the Rights of the Child’s general comment No. 9 (2006) on the rights of children with disabilities pro-vides comprehensive guidance on the rights of children with disabilities in the context of
the Convention on the Rights of the Child.
Adopted at the time of negotiations on the Convention on the Rights of Persons with Dis-abilities, its guidance is relevant to article 7.
Others
Other persons with disabilities might also be subject to multiple forms of discrimi-nation, such as indigenous persons with dis-abilities or older persons with disdis-abilities.